N10678

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 638 OF 2023

BETWEEN:
PHLIP LAHEK for himself & on behalf of Mabanob villagers
-First Plaintiff-

AND
ANDREW GILENG for himself & on behalf of Riwo villagers
-Second Plaintiff-

AND
CHARLES LAVI for himself &on behalf of Malmal villagers
-Third Plaintiff-

AND
JAUL SAGUI for himself & on behalf of Kananam villagers
-Fourth Plaintiff-

Vs

SALI TAGAU
-First defendant-

AND:
SELON LIMITED
-Second Defendant-

Madang: Narokobi J
2023: 8th December
2024: 7th March 

PRACTICE AND PROCEDURE – Courts inherent power to protect itself from abuse of process – whether the statement of claim discloses a reasonable cause of action – No reasonable cause of action demonstrated – proceeding dismissed

The plaintiffs have filed proceeding to be recognised as the registered proprietor of state land described as Millinat Plantation, Portion 237, Milinch of Kranket, Fourmil Madang (the property). The second defendant is the current registered proprietor. As I understand it, that land has been apportioned and certain sections sold by the defendants. Plaintiffs are essentially asking for portions that have not been sold to be returned to them, and for general damages loss of property for portions that have already been sold. The defendants have filed an application to dismiss the proceeding on the basis that it is statute barred, on the basis of res judicata and that the plaintiffs’ lack representative capacity. 

Held:

1.	The Court has an inherent jurisdiction to protect itself from abuse of its process from unmeritorious claims, such as matters that do not disclose any reasonable cause of action.
2.	To determine if there is a cause of action, three key factors must exist, firstly, a legal right known to law must be shown, secondly, the facts which show the plaintiff’s entitlement to that right, and thirdly on the facts, show how that right has been transgressed. These all must be pleaded.
3.	Since none of these factors were shown, no reasonable cause of action is disclosed and the proceeding is dismissed, even after taking the approach in Kuman v Digicel (PNG) Ltd (2013) SC1232 to read the statement of claim as a whole to see if there was a discernable cause of action.

Cases Cited:
Kais v Tagau (2016) N6159 
Kais v Tagau (2020) N8191
Kuman v Digicel (PNG) Ltd (2013) SC1232
PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forests [1992] PNGLR 85
Tagau v Kais (2018) SC1755
Takori v Yagari (2007) SC905

Legislation:
Constitution
Land Registration Act 1981

Counsel:
Mr. Maino, for the Plaintiffs
Mr. Yalapan, for the Defendants

RULING
8th March 2024

1.	NAROKOBI J: The plaintiffs have filed proceeding to be recognised as the registered proprietor of state land described as Millinat Plantation, Portion 237, Milinch of Kranket, Fourmil Madang (the property). The second defendant is the current registered proprietor. As I understand it, that land has been apportioned and certain sections sold by the defendants. Plaintiffs are essentially asking for portions that have not been sold to be returned to them, and for general damages loss of property for portions that have already been sold.

2.	The defendants have initiated an eviction exercise in the District Court and as part of the process, several houses were torched. The plaintiffs applied for a stay of the eviction, and I granted temporary orders stopping the eviction on 5 December 2023.

3.	The statement of claim has since been amended to claim breach of s 56 of the Constitution. I allowed this amendment on 8 December 2023.

4.	The plaintiffs say that the property was run as a planation prior to independence and upon the government’s policy to have such land returned back to landowners, they were given the property, and the defendants managed it on their behalf. However, the first defendant had the property allotted to the second defendant and distanced himself from the plaintiffs. Some of them were directors in the second defendant but have since been removed by the first defendant, without their knowledge.

5.	The property has been the subject of several court litigation. These cases have also been litigated in the Supreme Court. The outcome of all these cases have been that the second defendant remain as the registered proprietor of the property. 

6.	The defendants has filed a notice of motion to dismiss the proceeding for reasons that the proceeding is:

(a)	Time barred;
(b)	Application of res judicata; and
(c)	Plaintiffs lack representative capacity.

7.	The plaintiffs claim that on or around 9 December 1999 the first plaintiff from Mabanob village, and a representative each from Riwo, Malmal, and Kananam villages who have since died, verbally authorised the first defendant and the second defendant in a meeting, to act in their interests and benefit by developing the property for the benefit of the four villages – Mabanob, Riwo, Malmal and Kananam.

8.	The plaintiffs now say that they have revoked the authorisation to the defendants, and want damages for the loss of the land and for portions of land that have not been sold to be returned. They say that they have authored a letter dated 30 October 2023 to withdraw their authority.

9.	Land in Papua New Guinea is a sensitive matter.  I appreciate that being a Papua New Guinean myself. But we have laws that determine the rights and interests of persons when it comes to land. Since this is state land, the main legislation that applies is the Land Registration Act 1981. I have also looked at the various court decisions contested over the property. The first one is that attached to the affidavit of Mr Vitus Kais, that is Kais v Tagau (2016) N6159. I have read that decision and the appeal of that decision – Tagau v Kais (2018) SC1755. The National Court found there was constructive fraud by the defendants. This was overturned on appeal by the Supreme Court and the second defendant is now recognised as the registered proprietor.

10.	A subsequent proceeding was mounted, again challenging the second defendant’s interest over the property. This is the case of Kais v Tagau (2020) N8191. The claim was dismissed, and the second defendant’s title was again confirmed. An appeal of that decision was dismissed for want of prosecution.

11.	 Before I look at the specific points of objections the defendants have raised, there is a more threshold question I must first consider. This is pursuant to the court’s inherent power to protect itself from abuse of process. When I look at the statement of claim, I have formed the view that it is seeking to overturn the second defendant’s title to the property. So I ask myself does the statement of claim disclose a reasonable cause of action known to law?

12.	The main claim is to challenge the second defendant’s legal proprietorship of the state lease to Millinat Plantation. Section 33 of the Land Registration Act is quite clear. In order to successfully overturn a state lease, the plaintiff must plead fraud, and of course at trial tender the necessary evidence to show fraud. I have read the statement of claim. No where does it plead fraud, either actual or constructive on the part of the defendants. In my view, following the numerous case authorities for dismissal for disclosing no reasonable cause of action, if the matter were to proceed to trial, the proceeding stands no prospect of succeeding. I wish to expound further on this.

13.	The case of PNG Forest Products and Inchcape Berhad v The State and Genia, Minister for Forests [1992] PNGLR 85 is instructive on this issue. That case has been cited favourably in the Supreme Court case of Takori v Yagari (2007) SC905.    

14.	The first point to note from the headnotes of PNG Forest Products and Inchcape Berhad is that:

A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this country. Such a right cannot be lightly set aside. Hence, the National Court Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. For the same reason and in the interest of justice, the rules include prohibitions against abuse of the court process.

15.	Also drawing from PNG Forest Products and Inchcape Berhad (again from the headnotes) is the courts power to protect itself from abuse of process:
Quite apart from the powers given to the court by the National Court Rules O 12 r 40 to strike out or stay any proceedings which:
a)	do not disclose a reasonable case of action; or
b)	are frivolous or vexatious; or
c)	are an abuse of the court process,
the Court also has an inherent jurisdiction to protect itself from abuse of its process.
16.	The test to apply from PNG Forest Products and Inchcape Berhad is to consider whether the cause of action is "obviously and almost incontestably bad".

17.	 There appears to be two main paragraphs in the statement of claim which sets out the cause of action of the plaintiffs – paragraph 19 and paragraph 25. Paragraph 19 refers to a letter where the plaintiffs say they have terminated the first and second defendant’s authority to represent them. Paragraph 25 pleads that the plaintiffs’ rights under s 56 of the Constitution have been infringed.

18.	To determine whether there is a cause of action, I must look at three key factors, firstly, a legal right known to law, and secondly, the facts which constitute that right, and thirdly how that right has been transgressed. These must all be pleaded (Takori v Yagari).

19.	I alluded to the Land Registration Act, which is the law that governs any challenge to a state title to property. The primary provision is s 33, “Protection of Registered Proprietor.” There are conditions stipulated there in s 33(1) which an interested person may rely on to challenge a registered proprietor of an estate or interest:

(a) in the case of fraud; and

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

20.	In this case, the plaintiffs must firstly identify a legal right known to law, and then show how they are entitled to that right, and thirdly how that right has been infringed. For the last factor, it would be the factors set out in s 33(1) of the Land Registration Act, which commonly has been fraud under s 33(1)(a). In my view the plaintiffs have shown neither their right to the property nor have they shown how that right has been transgressed, through fraud for example. I cannot discern any plausible cause of action against the defendants from these pleadings. 

21.	Even if I were to take a liberal approach by looking at the statement of claim as a whole despite the lack of pleading of a particular element to discern a cause of action (Kuman v Digicel (PNG) Ltd (2013) SC1232, I am still left with an unfavourable view of the viability of the claim.

22.	I am therefore left with the conclusion that cause of action is "obviously and almost incontestably bad," and must be dismissed for disclosing no reasonable cause of action.

23.	The orders I make are therefore as follows:

1.	The proceeding is dismissed in its entirety for disclosing no reasonable cause of action.
2.	Each party will bear their own costs of the proceeding.
3.	The stay orders will remain for 30 days, after which it will be discharged.
4.	Matter is concluded and the file is closed.
5.	Time is abridged. 

Judgment and orders accordingly.

Tabai Lawyers: Lawyers for the Plaintiffs
Yalapan Lawyers: Lawyers for the Defendants